The Supreme Court Brings Back the Death Penalty

The Supreme Court just made a decision that will send prisoners across the country to their deaths.

In a 7 to 2 ruling, it upheld lethal injection as currently carried out as constitutional, ending a de-facto moratorium on state-sanctioned murder.

Executions in the United States had been on hold since last September, when the court decided to take on the case of Baze v. Rees. At stake was the question of whether Kentucky's lethal injection protocol violated the Eighth Amendment prohibition of "cruel and unusual punishment." The three-drug killing technique or some version of it -- a paralytic, a barbiturate, and a dose of potassium chloride -- is used in 35 out of 36 death penalty states. (Nebraska, whose sole method of execution used to be electrocution, ruled the electric chair unconstitutional this past February.) As states froze their execution machinery to await the justices' ruling, not a single execution was carried out for seven months. Last-minute stays of execution aside, it was a glimpse into what the United States might look like without the death penalty.

Baze represented a critical development in death penalty litigation, the first time the court has considered a specific method of execution since it upheld the firing squad in 1878. Ever since the Supreme Court's last-minute intervention in the case of Florida death row prisoner Clarence Hill -- he was strapped onto a gurney with intravenous lines in his arms -- in January 2006, the stage had been set for a showdown on lethal injection. When the court ruled later that year that prisoners could appeal their death sentences based on the possibility that lethal injection is cruel and unusual, a wave of appeals swept the country.

Now, those prisoners have lost significant legal footing and with it, very possibly, the right to live. "While the opinion appeared to leave open a chance that some further challenges could be made to the use of lethal drugs under a specific procedure in another state," explained Lyle Denniston at SCOTUSblog, "... the opinion also appeared to mean that the three drugs now used in all of those jurisdictions do not, alone or in combination, fail the court's new standard."

In other words, the country's preferred execution method is now insulated by a legal precedent.

This is a serious blow to death penalty opponents who hoped that disabling the death machinery would lead to abolishing it. It is also, in many ways, the result of a frustrating failure of legal strategy. The attorneys who argued Baze did so on very narrow grounds, contending that Kentucky's lethal injection protocol is broken, but not beyond repair. "One needs a person trained in monitoring anesthetic death to participate in the process," defense attorney Donald Verrilli suggested, not only encouraging the controversial notion that medical professionals have a role in carrying out executions, but also encouraging the court to treat botched executions as an aberration; freak accidents that rarely occur. "The court has held that an isolated mishap alone does not violate the Eighth Amendment," wrote Chief Justice John Roberts in the decision. But states from California to Florida have had lethal injections go horribly wrong in recent years; with states often secretive about their execution procedures -- and many not keeping data on file about them -- how "isolated" these incidents are is largely unknown.

Lethal injection is often described as a "three-drug cocktail." The first drug is the barbiturate sodium thiopental; the second, a paralytic called pancuronium bromide; and the third, potassium chloride, which stops the heart. The technique has been favored by death penalty supporters who find appeal in its medical veneer. In theory, if the drugs are administered correctly, the victim will die quickly and painlessly. But in reality, executioners, contrary to the assumption of many, usually have little or no medical training. If they wrongly administer the first drug, the result can be grisly.

Take the case of Joseph A. Clark, a death row prisoner in Ohio. On the day of his execution in May 2006, it took the execution team 22 minutes to find a vein -- a not uncommon problem. Shortly after the catheter was finally inserted, Clark's vein collapsed and his arm began to swell, at which point, he lifted his head. "He said 'It don't work, it don't work, it don't work, it ain't working,' about five times," one witness later described. At that point, the gurney was concealed by curtains. Thirty minutes later, there was "moaning, crying out and guttural noises." An hour and a half after the start of the execution, Clark was dead.

Then there are instances where the paralytic drug can make it impossible to tell if something has gone wrong. Since a paralyzed prisoner cannot cry out or move if in pain, clues that he or she suffered only come with the autopsy. In the case of Florida prisoner Angel Diaz in December 2006, he started to move following the first drug, "squinting and grimacing as he tried to mouth words," according to the Death Penalty Information Center. "A second dose was then administered, and 34 minutes passed before Diaz was declared dead. At first a spokesperson for the Florida Department of Corrections claimed that this was because Diaz had some sort of liver disease. After performing an autopsy, the medical examiner, Dr. William Hamilton, stated that Diaz's liver was undamaged but that the needle had gone through Diaz's vein and out the other side, so the deadly chemicals were injected into soft tissue, rather than the vein." Angel Diaz was quite literally tortured to death.

The cruel irony is that the paralyzing agent is totally pointless; serving no purpose aside from masking the effects of the lethal chemicals on a prisoner's body. In fact, veterinarians long ago decided not to use it for the that very reason. But death row prisoners, despite being human beings, do not inspire the humane treatment that animals do -- and twisted logic is offered to keep the paralyzing drug in place. "The purpose it serves," argued Roy Englert, the attorney representing Kentucky before the court, "is the purpose of dignifying the process for the benefit of the inmate and for the benefit of the witnesses." In reality, it is used to "dignify the process" for the benefit of the state. It makes murder look a little less murderous.

For legal experts, the Baze decision is not a major surprise and in fact, contains some interesting language about the future of death penalty litigation. ''I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself,'' wrote Justice Stevens. The variety of opinions expressed by the justices -- a "plurality" in legal terms -- in the rather glib interpretation of one expert blogger, "provides a little something for everyone." Unfortunately, for prisoners granted a temporary reprieve by the seven-month-long de facto moratorium, what the decision provides is death.

As they have since the return of the American death penalty in 1976, defense attorneys will find new legal arguments to try to spare their clients' lives. But how many prisoners will die before another opportunity arrives like the one presented by Baze? How many of them are on death row because they are poor or black? How many of them are innocent?

As Marlene Martin, executive director of the Campaign to End the Death Penalty says, "I think of people like Troy Davis, Rodney Reed and Timothy McKinney -- all on death row, all African-American, all poor and almost all surely innocent. What does this decision mean for them and the countless others like them?" As executions resume in a country with more than 3,000 people on death row -- whose names are unknown to the vast majority of Americans -- it is a question not enough people are willing to ask.

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Liliana Segura is a staff writer, editor of Rights & Liberties Special Coverage, and a board member of the Campaign to End the Death Penalty.